L v The State of Western Australia
[2007] WASCA 186
•7 SEPTEMBER 2007
L -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 186
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 186 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:42/2007 | 20 AUGUST 2007 | |
| Coram: | PULLIN JA MILLER JA LE MIERE AJA | 7/09/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part Sentence of 24 months substituted for sentence of 32 months' imprisonment | ||
| B | |||
| PDF Version |
| Parties: | L THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Indecent dealing with children under the age of 13 years Two sisters Six counts committed on two occasions Effective sentence of 32 months' imprisonment Whether manifestly excessive |
Legislation: | Nil |
Case References: | Biggs v The Queen, unreported; CCA SCt of WA; Library No 960657; 11 November 1996 CA v The Queen [2000] WASCA 176 De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Dinsdale v The Queen (2000) 202 CLR 321 Ferry v The Queen [2003] WASCA 207 Hodder v The State of Western Australia [2005] WASCA 257 Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994 Jarvis v The Queen (1993) 20 WAR 201 Lowndes v The Queen (1999) 195 CLR 665 McGarry v The Queen [1999] WASCA 276 Mill v The Queen (1988) 166 CLR 59 R v Chilvers [2003] WASCA 87 VIM v Western Australia (2005) 31 WAR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : L -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 186 CORAM : PULLIN JA
- MILLER JA
LE MIERE AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
File No : IND 1410 of 2006
Catchwords:
Criminal law and procedure - Sentencing - Indecent dealing with children under the age of 13 years - Two sisters - Six counts committed on two occasions - Effective sentence of 32 months' imprisonment - Whether manifestly excessive
(Page 2)
Legislation:
Nil
Result:
Appeal allowed in part
Sentence of 24 months substituted for sentence of 32 months' imprisonment
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC & Ms A N Blackburn
Respondent : Mr J Mactaggart
Solicitors:
Appellant : D G Price & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Biggs v The Queen, unreported; CCA SCt of WA; Library No 960657; 11 November 1996
CA v The Queen [2000] WASCA 176
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Dinsdale v The Queen (2000) 202 CLR 321
Ferry v The Queen [2003] WASCA 207
Hodder v The State of Western Australia [2005] WASCA 257
Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
McGarry v The Queen [1999] WASCA 276
Mill v The Queen (1988) 166 CLR 59
R v Chilvers [2003] WASCA 87
VIM v Western Australia (2005) 31 WAR 1
(Page 3)
1 PULLIN JA: I agree with Miller JA.
2 MILLER JA: The appellant was charged on an indictment containing six counts of indecent dealing with a child under the age of 13 years. All offences were alleged to have occurred between 17 and 25 January 2004. Counts 1 and 2 occurred on one day and counts 3 to 6 on another occasion. All offences were committed at a farm at Capel.
3 The first count alleged an offence of indecent dealing with K, a child under the age of 13 years, by procuring her to touch the penis of the appellant. The second count alleged an offence of indecent dealing with M, a child under the age of 13 years, by the appellant exposing his penis to her. The third count alleged an offence of indecent dealing with K by the appellant urinating in her presence. The fourth count alleged an offence of indecent dealing with M by the appellant urinating in her presence. The fifth count alleged an offence of indecent dealing with K by the appellant masturbating in her presence. The sixth count was an offence of indecent dealing with M by the appellant masturbating in her presence.
4 The appellant pleaded guilty to the indictment on 1 February 2007. He was sentenced by Martino DCJ on 22 March 2007. The sentences were as follows:
• Count 1 - 16 months' imprisonment;
• Count 2 - 8 months' imprisonment (concurrent);
• Count 3 - 8 months' imprisonment (concurrent);
• Count 4 - 8 months' imprisonment (concurrent);
• Count 5 - 16 months' imprisonment (concurrent); and
• Count 6 - 16 months' imprisonment (cumulative).
5 The effective sentence of 32 months' imprisonment was ordered to commence on 1 February 2007 and the appellant was ordered to be eligible for release on parole after serving 1 year 4 months.
Appeal
6 On 18 May 2007, the appellant was given leave to appeal the sentences imposed on 22 March 2007. The grounds are as follows:
(Page 4)
- Ground One
The Learned Sentencing Judge erred in imposing the sentences of 16 months imprisonment for each of counts 1 and 5 which sentences were manifestly excessive in all the circumstances of the case.
Particulars
(a) The offending did not involve any touching of the complainants' genitalia or person in any way;
(b) The offending did not involve any sexual penetration of the complainants;
(c) The offending did not involve any threat, coercion or violence;
(d) The Appellant entered pleas of guilty at an early stage;
(e) The Appellant does not have a prior criminal record;
(f) The sentences imposed were not reflective of the circumstances of the offending and the early pleas of guilty coupled with the other mitigating circumstances personal to the Appellant.
Ground Two
The Learned Sentencing Judge erred in failing to suspend the sentence.
Particulars
(a) The offending did not involve any touching of the complainants' genitalia or person in any way;
(b) The offending did not involve any sexual penetration of the complainants;
(c) The offending did not involve any threat, coercion or violence;
(d) The Appellant entered pleas of guilty at an early stage;
(e) The Appellant does not have a prior criminal record.
Ground Three
The Learned Sentencing Judge erred in holding that where an offender has offended against two child victims and the victims are aware of the offences committed against each other, the totality principle could have little effect.
(Page 5)
(a) The totality principle is not dependent on the number of victims involved in any group of offences committed by an offender.
(b) The operation of the totality principle is not limited in cases where multiple victims are aware of the offences committed against the other(s).
(c) The Learned Sentencing Judge's observation to this effect at page 56 of the transcript is erroneous.
(d) To the extent that the Learned Sentencing Judge's application of the totality principle was limited by reference to this observation, his Honour was in error.
Ground Four
The Learned Sentencing Judge erred in failing to give adequate weight to the totality principle and the resultant sentence was manifestly excessive in all the circumstances of the case.
Particulars
(a) The offending in question occurred over a comparatively short period of time and involved the same complainants;
(b) Whilst his Honour was prima facie entitled to make the sentences imposed in relation to counts 1 and 2 cumulative upon the sentences imposed in relation to counts 3 to 6 the effect of making the sentences fully cumulative has resulted in a head sentence which is manifestly excessive in the circumstances of the case;
(c) The sentences imposed for the two groups of offences should have been made at least partially concurrent with each other in order to avoid a sentence which was manifestly excessive.
The facts
7 The facts stated by the prosecution on 1 February 2007 were as follows. The appellant was the uncle of the two complainants. He was 35 years of age in January 2004. The complainant K was 9 years of age and the complainant M was 7 years of age.
8 The complainants lived with their parents on a farm at Capel in the south-west of Western Australia. The offences committed by the appellant occurred at that location.
9 The appellant and his wife (the sister of the complainants' mother) were invited to stay at the Capel farm in the January 2004 school
(Page 6)
- holidays. On two separate occasions during that period, the appellant accompanied K and M into the orchard. The complainants were searching for mulberries.
10 Counts 1 and 2 on the indictment occurred in the orchard. The appellant undid the fly on his trousers and exposed his penis to the two complainants. He told them to tell nobody. He held his penis in front of the complainants and asked if they would touch it. K complied and touched the appellant's penis. M declined to do so. The appellant then placed his penis back inside his trousers and made the girls promise not to tell anybody.
11 Counts 3, 4, 5 and 6 on the indictment arose from a second occasion on which the appellant accompanied the two complainants to the orchard. On this occasion, he undid the fly on his trousers and pulled his penis out, again exposing it to the two complainants. He held his penis and urinated in front of the complainants. After doing this, he masturbated in front of them and ejaculated. He then placed his penis back inside his trousers and returned with the complainants to the house.
12 The offences were revealed in mid-2004. The complainants disclosed to a relative that they had seen what they described as "mayonnaise" coming out of the appellant's penis. The relative immediately notified the complainants' parents, who then spoke with the complainants about the offences. The complainants told their parents of the offences and said that the appellant had told them to tell nobody.
13 The complainants' parents confronted the appellant who at first denied the offences. He alleged that the complainants were lying. He later said it was a misunderstanding and contended that the complainants had repeatedly "snuck up on him whilst he was urinating in the orchard and watched him" until he remonstrated with them. The appellant denied masturbating in front of the two complainants. He later contended to the mother of the complainants that he had used a sachet of mayonnaise which he placed behind his penis and pretended that he was ejaculating when, in fact, he was not doing so.
14 It came to the attention of the parents of the complainants that the appellant had confessed his guilt to a member of the congregation of his church. He had also spoken to a psychologist about the matter. Nevertheless, he refused to admit to the parents of the complainants that he had committed the offences. The complainants' parents then reported the matter to police.
(Page 7)
15 Victim impacts statements of the complainants and their parents were tendered to the learned sentencing judge. The victim impact statement of K reveals that the appellant was regarded as part of "[her] family". K spent a lot of time around the appellant and trusted him. He was a "priesthood holder" and was on the "bishopric in his ward" at the Church of Jesus Christ of the Latter-day Saints. K complains that the appellant did "the wrong thing" when she was between 10 and 11 years of age. She described his behaviour as very inappropriate and in consequence of it says that she felt "horrible, angry, embarrassed, guilty and disgusted". She complains that she finds it difficult to talk to boys or men. She feels scared, inadequate, shy and lacking in confidence.
16 The victim impact statement of M complains that the appellant initially denied the commission of the offences and she and her sister were regarded as liars. This upset M. M states that she initially had nightmares about what occurred and says that she did not want to talk about the matter because it made her uncomfortable. She felt guilty, as if she had done something wrong. She, too, was upset that the appellant had denied the commission of the offences and she and her sister had been treated like liars.
17 A pre-sentence report in relation to the appellant on 19 February 2007 reveals that the appellant generally agreed with the Statement of Material Facts, but, in relation to the initial incident, he denied intentionally exposing his penis, claiming that he was just urinating and that the complainants had kept sneaking around and looking at him. He denied that he was sexually aroused.
18 The appellant generally agreed with the Statement of Material Facts in relation to the second set of offences, but attempted to minimise his behaviour by stating that his actions were not premeditated, but were an opportunity to educate the victims about sex. He claimed that they had been asking him questions about how humans had sex. He said he felt the need to urinate and took the opportunity to masturbate in front of the complainants so as to educate them about the anatomical features of the male human body.
19 The writer of the pre-sentence report notes that throughout her interview with the appellant, he attempted to minimise his actions by stating that he did not instigate or coerce the complainants into participating in any of the offences. He was thought to be somewhat remorseful for his actions, but contended that the offences were
(Page 8)
- committed as a result of the complainants' curiosity and his own "very poor decision making".
20 The pre-sentence report deals extensively with the appellant's family background. It reveals that he was the victim of sexual abuse as a child on two separate occasions. He was married to his present wife in 2001. His wife is strongly supportive of him. Prior to his appearance in the District Court, the appellant was employed at TAFE in the field of information technology.
21 The writer of the report concluded that the appellant had no apparent insight into the seriousness of the charges he faced and the possible consequences of his actions. An addendum to the pre-sentence report is a specialist report from a clinical psychologist. It concludes that the appellant's risk of reoffending is low, but because he demonstrates a number of outstanding treatment needs, there is evidence that his risk may be higher than indicated. The psychologist concludes:
[The appellant] denies any sexual interest in children, however the nature of the current offences, together with the admissions made in the course of therapy with Dr Phil Watts, provides substantial evidence of sexual deviance. ... Whilst adamant that he will not reoffend, he is unable to generate any strategies that he could implement to moderate his risk when in high risk situations. [The appellant] prefers to suggest that his behaviour is not what is expected within the context of the Church and that he does not present an ongoing risk as he is committed to living within Church guidelines and expectations. This appears largely inadequate as a strategy to reducing his overall level of risk and it should be highlighted that he has admitted behaving inappropriately within a Church setting. His religious beliefs alone clearly do not provide an adequate deterrent. Clearly, it will be imperative that [the appellant] develops some personally relevant and specific relapse prevention strategies.
22 A psychological assessment tendered to the court on behalf of the appellant concluded that the appellant was at low risk of reoffending and stated that this would particularly be so if he were to undergo psychological treatment to address his emotional difficulties.
Sentencing comments
23 The learned sentencing judge first recounted the facts. He noted that in none of the offences did the appellant touch the victims. He, nevertheless, considered the offences to be serious, particularly that revealed by count 1, where the appellant procured one of the complainants to touch his penis and counts 5 and 6, where he masturbated to ejaculation in the presence of both complainants.
(Page 9)
24 The learned sentencing judge noted that the victims were very young and the offences constituted a significant breach of trust. He noted the distress which the victims and their parents continued to feel. He noted that, although the appellant did not plead guilty at the first opportunity, he did plead guilty at an early stage of the proceedings. This plea demonstrated remorse and a willingness to facilitate the course of justice. Particular mention was made of the fact that the appellant had removed the need for the victims to give evidence about the offences.
25 The learned sentencing judge accepted evidence of remorse. He said this was demonstrated by the appellant's conduct in confessing his behaviour to a member of his church and to his wife. He noted that the confession to the church has resulted in the excommunication of the appellant. This, he said, was a significant punishment for the appellant because he had an important role in the church and the church was an important part of his life.
26 The learned sentencing judge noted the continued support to the appellant of his wife. He noted also that the appellant had no prior convictions for any offences. His Honour did consider that the appellant needed to address his sexual interest in children with the assistance of appropriate professional guidance. He added:
While you do have some insight, you do not fully comprehend the seriousness of your offending behaviour or what has led to it.
However, by accepting responsibility for your offending behaviour and your demonstrated remorse and means to facilitate the course of justice and your willingness to undergo counselling and seek psychological help, you have demonstrated that you are motivated to address the problems that you have with appropriate professional assistance. It is with the greatest importance that you do so.
27 In imposing sentence, the learned sentencing judge expressed the view that there was a need for punishment and deterrence, both personal and general. The offences were considered to be so serious that imprisonment was the only disposition open. Sentences were pronounced in accordance with the table that I have previously set out.
28 The learned sentencing judge indicated that he understood the need to ensure that the total sentence accurately reflected the criminality of the appellant's conduct and was not crushing to his prospects of rehabilitation. His Honour did note:
(Page 10)
- In some cases where there are two child victims and the victims are aware of the offences committed against the other, the totality principle can have limited effect.
29 The learned sentencing judge directed that the sentences on counts 1 and 6 should be cumulative and all others concurrent. This led to the overall sentence of 32 months' imprisonment.
30 The learned sentencing judge considered the question of suspension of sentence and concluded that, in all the circumstances, the seriousness of the offences was such that it was necessary that the term of imprisonment be served immediately.
Grounds of appeal
Ground 1
31 The appellant contends that the sentence of 16 months' imprisonment imposed on each of counts 1 and 5 ([sic] 1, 5 and 6) were manifestly excessive in all the circumstances of the case. Reference was made to a number of decided cases, but it was accepted that there is no tariff for offences of this nature and the facts and circumstances of other cases vary so much that it is difficult to find any clear range for sentences in cases of this type.
32 Senior counsel for the appellant contended that it was particularly difficult to fix upon any range of sentences in cases in which the offender had committed the offence of indecent dealing, but in circumstances where the offender had not touched the victim or victims. Reference was made to Hodder v The State of Western Australia [2005] WASCA 257, where a number of cases of indecent dealing involving either touching or indecent exposure were reviewed in the judgment of Pullin JA. Hodder's case involved a 59-year-old man who in the vicinity of the Midland bus station had made gestures to an 11-year-old complainant. Those gestures consisted of the appellant pointing to his groin area and to his mouth and displaying money in his wallet. The appellant intended, and the complainant inferred, that the appellant was offering money if the complainant would engage in oral sex. The complainant moved away and the appellant made an obscene comment to her, which led to the complainant reporting the matter to the bus station manager. The appellant had a criminal record which included offences of indecent acts, indecent assault and wilful exposure, but the last offence was committed approximately 12 years beforehand. A sentence of 16 months' imprisonment had been imposed in the District Court. By majority
(Page 11)
- (Pullin JA and McLure JA) that sentence was reduced to one of 12 months' imprisonment.
33 In the course of his judgment, Pullin JA at [5] referred to a number of similar cases. In Ferry v The Queen [2003] WASCA 207, a sentence of 15 months' imprisonment was imposed on an offender convicted after trial of fondling the breasts of a 12-year-old girl. In CA v The Queen [2000] WASCA 176, a sentence of 12 months' imprisonment imposed on an offender for touching an 11/12-year-old girl's breast and a sentence of 18 months for pulling down her pants were affirmed. In Humes v The Queen, unreported; CCA SCt of WA; Library No 940687; 7 December 1994, a sentence of 12 months each was imposed in respect of two incidents of indecent dealing by a 34-year-old man of a 17-year-old girl on a train and later at a railway terminal. One offence involved the offender rubbing his face against the face, lips and neck of the complainant and the other fondling her breasts over her clothing. In McGarry v The Queen [1999] WASCA 276, the offender was sentenced to 3 years' imprisonment in circumstances where he had, through the telephone directory, located the address of an 11-year-old complainant. He attended at her home and upon seeing her inside the house attracted her attention by tapping on the window. When she approached the window, he exposed his penis and masturbated until ejaculation. He had a long record of sexual offending. Other cases reveal that fines have sometimes been imposed for offences of indecent dealing.
34 In Biggs v The Queen, unreported; CCA SCt of WA; Library No 960657; 11 November 1996, Pidgeon J (with whom Owen and Templeman JJ agreed) said, in a case in which the appellant had been convicted of indecent dealing with his 13-year-old stepdaughter (by placing his hand underneath her clothes and touching her bare breasts and then moving his hand towards her vagina), that the offence is one "where, normally, one would expect imprisonment when a child is treated in that manner" (see page 7). In the case in question a fine of $10,000 had been imposed and, somewhat surprisingly, the appellant appealed against the severity of the sentence. The appeal was dismissed.
35 The observation of Pidgeon J related to a sentence pronounced before the proclamation of the Sentencing Act1995 (WA) and the option of a suspended sentence of imprisonment did not then exist. Nevertheless, it seems to me that what Pidgeon J said is generally the case. That is, one would expect a sentence of imprisonment to be imposed for the offence of indecent dealing in circumstances such as occurred in the case of Biggs
(Page 12)
- and in the case presently before the court. Of course, since the Sentencing Act1995, the option of a suspended sentence is always open.
36 The cases to which Pullin JA referred in Hodder v The State of Western Australia generally support the view that indecent dealing by adults with young children will call for a sentence of imprisonment. When that indecent dealing is associated with a breach of trust, a sentence of imprisonment is all the more likely. I accept and adopt the statement of relevant principles for sentencing in these matters which is set out by McKechnie J in R v Chilvers [2003] WASCA 87 at [25]. Breach of trust is an important factor. So is the commission of crimes against more than one child. This is particularly so when one child becomes aware that a sibling has also been a victim. Disparity in age is an aggravating feature. Mitigating factors do not have as much weight as they may do in other cases. Exceptional circumstances must be shown before a sentence other than one of immediate imprisonment is imposed.
37 I accept that in the present case, the appellant did not touch the complainants. To an extent, this distinguishes the case from some of the cases to which I have referred. Nevertheless, the children were very young and the offences were disgusting. They had a significant effect upon the victims. Notwithstanding the appellant's plea of guilty and the other matters that were put in mitigation of penalty, it was, in my view, a case which called for a sentence of imprisonment for each offence. In my view, the sentences imposed were not beyond the exercise of a sound discretionary judgment. I respectfully adopt the statement of the court in Lowndes v The Queen (1999) 195 CLR 665 at [15] to the following effect:
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. (Citations omitted)
Ground 2
38 This ground contends that the learned trial judge erred in failing to suspend the sentences of imprisonment. By this ground, the appellant
(Page 13)
- contends that all sentences of imprisonment should have been the subject of suspension. Ground 1 contends only that the sentences of 16 months' imprisonment imposed on counts 1, 5 and 6 were excessive sentences.
39 Senior counsel for the appellant submitted that "[w]hilst unusual, it is not unheard of for sexual offences against children, even offences involving penetration, to be dealt with by way of a suspended period of imprisonment". Reference was made to the seminal case of Dinsdale v The Queen (2000) 202 CLR 321. This was a case of sexual penetration of a child under the age of 13 years and indecent dealing with the same child. Both offences were alleged to have occurred on the same date and at the same place. The appellant had pleaded not guilty, but was convicted after trial. He was sentenced to concurrent terms of suspended imprisonment, each term being 18 months, suspended for 18 months. The Court of Criminal Appeal allowed a prosecution appeal and set aside the sentence imposed by the trial judge on the offence of sexual penetration. In lieu, it was ordered that the appellant be sentenced to 30 months' imprisonment. The order for suspension of the term was set aside. The High Court concluded that the Court of Criminal Appeal had misapprehended the relevant principle of sentencing relating to the question of suspension of sentence. The Court of Criminal Appeal was considered to have inverted the order in which the statute required a sentencing judge to consider the matter. Gleeson CJ and Hayne J said at [18]:
The sentence imposed on the appellant by the trial judge was undoubtedly merciful. Ordinarily, conduct of the kind committed by the appellant would merit immediate imprisonment for a significant period. While that is ordinarily the case, we do not accept that it is an invariable rule. We agree with Gaudron and Gummow JJ and with Kirby J that, in the circumstances of this case, the sentence passed at trial was not manifestly inadequate.
40 Dinsdale v The Queen is important because it requires a trial judge, when asked to suspend a sentence of imprisonment, to consider anew all relevant circumstances and, thus, to adopt a "two-step" approach. This is what the Sentencing Act1995 mandates: see per Kirby J at [87]. There is no suggestion in the present case that the learned sentencing judge misapprehended the application of that principle. The only issue is whether the learned sentencing judge erred in the exercise of his discretion in deciding against suspension of the sentences of imprisonment that were imposed.
(Page 14)
41 The learned sentencing judge considered that the seriousness of the offences was such that suspension was inappropriate. That is clearly a legitimate factor to consider. The offences here were serious. They involved a man 34 years of age committing offences of indecent dealing on his nieces aged 7 and 9 years of age respectively. The circumstances of indecent dealing I have already set out. Aggravating features included the disparity in age between the offender and the victims, the breach of trust that was involved and the consequences to each of the victims. For the appellant to have exposed his penis in the circumstances in which he did and ultimately to have masturbated to the point of ejaculation in front of the two young girls meant, in my view, that the offences were properly described as too serious to allow the suspension of sentence. That is not to say that a sentence of suspended imprisonment can never be imposed for offences of indecent assault of this nature. Clearly, such a sentence can be so imposed. It will, however, be a merciful disposition to suspend the sentences. Although in R v Chilvers (supra), McKechnie J at [25] considered the "[e]xceptional circumstances" must be shown to justify a sentence other than immediate imprisonment, I would not go so far as to say that exceptional circumstances need always be shown. It is sufficient that the facts of a particular case may justify suspension. This, however, was not such a case.
Ground 3
42 This ground contends that the learned trial judge erred in applying the "multiple victims principle".
43 What the learned trial judge said I have already quoted. It was that in some cases (my emphasis) where there are two child victims and the victims are aware of the offences committed against the other, the totality principle can (my emphasis) have limited effect.
44 I do not take the learned sentencing judge to have been stating a "principle" and, in my view, there is no such thing as a "multiple victims principle". Counsel for the appellant rightly contests any suggestion that there is.
45 All that I apprehend the learned sentencing judge to have been saying in the present case is that in a particular case, it may be that where there are two child victims and each is aware of the offences committed against the other, it increases the overall criminal responsibility of the offender. If the words "the totality principle can have limited effect" mean anything other than that, I consider the learned sentencing judge to have been incorrect.
(Page 15)
46 The so-called "principle" appears to come from observations of Ipp J in De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375; 19 July 1996. The passage is in the following terms:
... where more than one child is involved as a victim, the totality principle may have only a marginal effect in reduction of the overall sentence, particularly where each victim is aware of the degrading and corrupting conduct being perpetrated upon the other. As is explained in Jarvis v R, unreported; CCA SCt of WA; Library No 930341; 14 June 1993 the sentence should be proportionate to the degree of criminality involved and the severity of a term of imprisonment increases exponentially as it increases in length. Where, however, more than one child is subjected to corrupting and degrading criminal behaviour by a person in a position of trust it may well be that the criminality of the conduct increases exponentially by the very fact that serious and long term harm has been caused to more than one child. Further, the corruption of one child and the emotional trauma suffered by her or him may be exacerbated by that child becoming aware that a sibling has been seduced into participating or required to participate in similar unlawful sexual conduct.
47 If this statement is thought to enunciate a principle of sentencing, I would respectfully disagree with it. However, Ipp J was only saying that, in the circumstances of more than one child victim becoming aware that a sibling has been seduced, the criminality of the conduct may increase exponentially. To the extent that Ipp J said that "the totality principle may have only a marginal effect in reduction of the overall sentence" I would respectfully disagree that there is any such principle. The totality principle, as it has been formulated in numerous cases (Mill v The Queen (1988) 166 CLR 59 at 62 - 63 and Jarvis v The Queen (1993) 20 WAR 201), recognises that a sentence should be proportionate to the degree of criminality involved. Ipp J himself formulated the principle in Jarvis v The Queen at 206 - 207 in the following terms:
... in taking a 'last look' at the total imprisonment imposed, the court will continue to apply the principle that the sentence should be proportionate to the degree of criminality involved. That principle is, after all, basic to the law of sentencing: see Wicks v R (1989) 3 WAR 372 at 379 - 380. The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
…
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v R (No 2) (1988) 164 CLR 465; Evangelista v R; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
(Page 16)
48 I do not take anything said by Ipp J in the earlier case of De Luce v The Queen to take away from the overall statement of principle.
49 In VIM v Western Australia (2005) 31 WAR 1, the Court of Appeal (Wheeler and Roberts-Smith JJA and Miller AJA) expressed some doubt about the accuracy of the observations of Ipp J in De Luce v The Queen:
[295] Cumulation of sentence is also to be expected where there is more than one victim. That is consistent with patterns of sentencing in relation to other types of offences. In such cases, we note, however, the frequently cited observation that totality is of marginal importance 'particularly where each victim is aware of the offending conduct perpetrated on the other' (De Luce v R; unreported; CCA SCt of WA; Library No 960375; 19 July 1996, per Ipp J). One can imagine that there will be cases in which one child's awareness of the offending against another will be of significance (eg, where, as is not unusual in such cases, there is particular deviance, or violence in order to dominate more than one child at a time, or where an older child has the additional burden of feeling himself or herself helpless to protect the younger). However, it is difficult to regard such awareness, or lack of it, as necessarily making one case more or less serious than another, since where each child believes that he or she is the only victim, there may be an increased sense of isolation and shame felt by each.
50 In my view, there is no principle which suggests that the totality principle should take second place to a so-called "multiple victims principle" in cases which each victim is aware of offending conduct perpetrated on the other. Any observations of Ipp J (with which Wallwork and Owen JJ agreed) in De Luce v The Queen should not, in my view, be taken to have that effect.
51 In the present case, I do not consider that the learned sentencing judge can be shown to have erred in applying the so-called "multiple victims principle" to the case and, thus, to have overlooked the totality principle. To the contrary, the learned sentencing judge took full account of the totality principle.
Ground 4
52 This ground contends that the total sentence of 32 months' imprisonment was manifestly excessive in all the circumstances and failed to take proper account of the totality principle, with the result that the sentence is potentially crushing.
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53 As I have pointed out, the learned sentencing judge expressed the view that in arriving at the total sentence, he had considered the need to ensure that it accurately reflected the criminality of the appellant's conduct and was not crushing to his prospects of rehabilitation. The principle was accurately stated and clearly well understood by the learned sentencing judge. The only question is whether, in all the circumstances, the principle was properly applied.
54 The overall sentence of 32 months' imprisonment was reached by accumulating the sentences imposed on counts 1 and 6. They were offences that occurred on separate occasions and they were the most serious offences. Count 5 was equally as serious as count 6, but the offence occurred at the same time as count 6.
55 The learned sentencing judge was faced with the question of determining how to structure the sentences to reflect the total criminality of the appellant's conduct. His Honour chose to accumulate two terms of 16 months each, leading to a total of 32 months. That did make the sentence a substantial sentence for offences of this nature. In my opinion, an overall sentence of 24 months was a more appropriate sentence to reflect the total criminality of the appellant's conduct. Such a sentence could have been achieved by accumulating the sentences imposed on count 1 and count 3. A total sentence of 24 months would, in my view, more accurately reflect the criminality of the conduct than a sentence of 32 months. The difference in the two sentences is sufficiently great to justify a conclusion that the overall sentence imposed upon the appellant was manifestly excessive and should be interfered with. I would therefore allow the appeal on ground 4. I would dismiss the appeal on each of the other grounds.
56 I would restructure the sentences imposed upon the appellant by ordering that the sentences imposed on counts 1 and 3 be served cumulatively, but that all other sentences be served concurrently with the sentence imposed on count 1. That would give an effective sentence of 24 months to commence on 1 February 2007. The order for eligibility for parole should remain.
57 LE MIERE AJA: I agree with Miller JA.
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